(Not a lawyer so potentially this isn’t correct, but:) Legally negligence is a bit weird in that it doesn’t really work probabilistically. If you actually cause the harm you suffer the culpability, but otherwise, maybe not. I do find it a bit unsatisfying, but I suppose the advantage is it’s robust to the state being completely wrong about whether something is risky. In practice most people do adjust their behaviour to the potential downside for themselves, preventing the potential downside for others. But it does depend on the individual to make a rational risk calculation.
The extent of the negligence definitely matters. Not vaccinating your children isn’t on the same planet of externalised risk as going outside with coronavirus. And passive smoking is several orders of magnitude lower externalised risk than failing to vaccinate your children.
My main point is that the argument needs to be made forcefully that there’s a simple and unexceptional basis for requiring people to comply with quarantine. This isn’t a strange situation where the state must grab additional power. Actually I’ve seen a lot of people say that libertarian theories of justice fail to account for this situation. I’m not a libertarian but I think it’s important that we totally reject that take. That’s not what’s going on at all.
The situation must not be framed as one exceptional circumstance where the state gets to basically imprison you in order to force you to do it the favour of not walking around. That’s completely not what’s happening. Instead the strange facts of the situation are this: by walking around you might be causing people to die. We must make people understand this strange fact. If you recklessly say “I don’t care I’m walking around anyway”, and someone does in fact die, then you are culpable. For the vast majority of people, this will be enough to make them comply. If you know you’re sick and you know that going outside might send you to prison for the rest of your life, why risk it?
Bob walks around most days. People die every day. Sure, Bob might have been unknowingly transmitting COVID, or any of a thousand other viruses. Bob was definitely, by the act of breathing, affecting the course of every hurricane for the rest of time. How do you assign culpability?
I mean...The same way we always do? It depends on whether the risks are reasonably forseeable. We know that if you go about your business as normal while infectious with the coronavirus, you might infect 4 people on average. If we take a lowish infection fatality rate and say that 0.1% of infected people die, then you have a something like a 0.4% chance of directly causing someone’s death.
How bad is a 0.4% chance? Should the law tolerate people putting others in danger, at about that level? If you could load up a 200-barrel revolver, would it be okay to put one bullet in, spin and fire?
Here’s one way to think about it: if you were to act such that you introduced a 0.4% chance of someone else dying every day for a year, there’s a 23% chance someone would eventually die. So I would say, no, this is not a level of danger we can accept people to impose on non-consenting strangers.
In practice the way that I think the law normally works is, if your actions show a disregard for the welfare of others and someone is in fact harmed, then you can be held culpable. So if you go outside, someone catches coronavirus and dies, then you can be held responsible. By my crude calculation, there’s about a 1⁄200 chance of that happening. I don’t think most people would break quarantine if they knew there was a 1⁄200 chance of someone dying and them going to prison. I think just explaining that the law was seeing it that way makes them take the risks seriously, while as it currently stands, lots of people think it sounds like bullshit.
It’s the “someone is in fact harmed” that is the tricky part in this case. If somebody who was previously asymptomatic got coronavirus a week after Bob walked past them, how do you propose to determine whether they got it from Bob? If you’re proposing a criminal penalty in the U.S., then you will need to prove this beyond a reasonable doubt. Probabilities of less than 99% won’t do, and there may be a few jurors who think 99.9999% still gives a reasonable doubt (the jury system has been described as “trial by people you would not normally consider your peers”).
(Not a lawyer so potentially this isn’t correct, but:) Legally negligence is a bit weird in that it doesn’t really work probabilistically. If you actually cause the harm you suffer the culpability, but otherwise, maybe not. I do find it a bit unsatisfying, but I suppose the advantage is it’s robust to the state being completely wrong about whether something is risky. In practice most people do adjust their behaviour to the potential downside for themselves, preventing the potential downside for others. But it does depend on the individual to make a rational risk calculation.
The extent of the negligence definitely matters. Not vaccinating your children isn’t on the same planet of externalised risk as going outside with coronavirus. And passive smoking is several orders of magnitude lower externalised risk than failing to vaccinate your children.
My main point is that the argument needs to be made forcefully that there’s a simple and unexceptional basis for requiring people to comply with quarantine. This isn’t a strange situation where the state must grab additional power. Actually I’ve seen a lot of people say that libertarian theories of justice fail to account for this situation. I’m not a libertarian but I think it’s important that we totally reject that take. That’s not what’s going on at all.
The situation must not be framed as one exceptional circumstance where the state gets to basically imprison you in order to force you to do it the favour of not walking around. That’s completely not what’s happening. Instead the strange facts of the situation are this: by walking around you might be causing people to die. We must make people understand this strange fact. If you recklessly say “I don’t care I’m walking around anyway”, and someone does in fact die, then you are culpable. For the vast majority of people, this will be enough to make them comply. If you know you’re sick and you know that going outside might send you to prison for the rest of your life, why risk it?
Bob walks around most days. People die every day. Sure, Bob might have been unknowingly transmitting COVID, or any of a thousand other viruses. Bob was definitely, by the act of breathing, affecting the course of every hurricane for the rest of time. How do you assign culpability?
I mean...The same way we always do? It depends on whether the risks are reasonably forseeable. We know that if you go about your business as normal while infectious with the coronavirus, you might infect 4 people on average. If we take a lowish infection fatality rate and say that 0.1% of infected people die, then you have a something like a 0.4% chance of directly causing someone’s death.
How bad is a 0.4% chance? Should the law tolerate people putting others in danger, at about that level? If you could load up a 200-barrel revolver, would it be okay to put one bullet in, spin and fire?
Here’s one way to think about it: if you were to act such that you introduced a 0.4% chance of someone else dying every day for a year, there’s a 23% chance someone would eventually die. So I would say, no, this is not a level of danger we can accept people to impose on non-consenting strangers.
In practice the way that I think the law normally works is, if your actions show a disregard for the welfare of others and someone is in fact harmed, then you can be held culpable. So if you go outside, someone catches coronavirus and dies, then you can be held responsible. By my crude calculation, there’s about a 1⁄200 chance of that happening. I don’t think most people would break quarantine if they knew there was a 1⁄200 chance of someone dying and them going to prison. I think just explaining that the law was seeing it that way makes them take the risks seriously, while as it currently stands, lots of people think it sounds like bullshit.
It’s the “someone is in fact harmed” that is the tricky part in this case. If somebody who was previously asymptomatic got coronavirus a week after Bob walked past them, how do you propose to determine whether they got it from Bob? If you’re proposing a criminal penalty in the U.S., then you will need to prove this beyond a reasonable doubt. Probabilities of less than 99% won’t do, and there may be a few jurors who think 99.9999% still gives a reasonable doubt (the jury system has been described as “trial by people you would not normally consider your peers”).